1994 P Cr (PLP)

7. It has been further deposed before us that after the murders of Rafique, Ghulam Shabir and Abdul Rehman deceased, a son of Allah Ditta appellant, namely, Akhwat Khalil who was thus a brother of Yousaf and Yasin appellants, had been murdered and close relatives of the three deceased persons of the present case had been nominated as the assailants and further that the heirs of Akhwat Khalil deceased, including the three appellants had also likewise, granted Afw to the said culprits.

8. In view of the above-noticed statements of the heirs of the three deceased persons of the present case and in view of the other attending circumstances above-noticed, we are satisfied with the voluntary nature of the Afw granted to Allah Ditta and Yasin appellants. Nothing exists on record which could persuade us not to act upon the composition of the offences so made or to punish Allah Ditta and Yasin appellants by way of "Tazeer".

9. Consequently, Criminal Appeal No.534 of 1990 is allowed to the extent of Allah Ditta and Yasin appellants. The above-noticed convictions and sentences recorded against them are set aside on account of the Afw granted to them by heirs of all the three deceased persons and they are thus acquitted of 8 the said charges as envisaged by the provisions of section 345 of the Cr.P.C. They shall be set at liberty forthwith, if not required to be detained in any other case.

10. This leaves us with the case of Yousaf appellant only who has not been granted pardon by any of the heirs of any of the three deceased persons. His case would, therefore, have to be decided in accordance with its merits.

11. The occurrence in question had taken place on 11-11-1988 at about 9-30 a.m. in front of the shop of Rafique deceased at Adda Rodu Sultan in the area of Police Station Atharra Hazari of District Jhang. The same had been reported to Allah Bakhsh, A.S.I. (P.W.10) at about 11-15 a.m., the same day, by Ghulam Hussain P.W. while the former was present at Adda Dargahi Shah.

12. Ghulam Hussain complainant had stated that he was running a shop in the Bazar of Rodu Sultan while his two younger brothers, namely, Abdul Rehman and Ghulam Shabir and their brother-in-law, namely, Rafque were jointly running a shop near Rehmania Mosque. He had added that it was around 9-30 a.m. on 11-11-1988 when he was present in the abovesaid shop of his brothers and brother-in-law that Allah Ditta armed with a Chhuri, Yasin also armed with a Chhuri and Yousaf armed with a knife suddenly emerged there and on Lalkara raised by Allah Ditta appellant to teach a lesson to Rafique deceased for insulting him, Yasin appellant inflicted a Chhuri blow in the abdomen of Rafque deceased whereupon, Abdul Rehman and Ghulam Shabir deceased persons rushed in to rescue Rafique deceased but they were also attacked and injured by the three appellants whereafter, all the three assailants left the place of occurrence. Ghulam Hussain complainant had further informed the said Police Officer that all these three victims were carried to the hospital who, however, succumbed to the injuries caused to them.

13. The complainant had further disclosed that 9/10 years prior to the present occurrence, Arshad, a brother of Rafique deceased had married Mst. Sharifan, a daughter of Allah Ditta appellant in exchange whereof, a sister of Rafique deceased, namely, Mst. Rukkyia Bibi had been married to Yasm, appellant; that about 2/3 months prior to the occurrence, both these ladies returned to their respective parental homes on account of some domestic disputes; that about 10/12 days prior to the occurrence, an altercation, on this account, had taken place between Rafique deceased and Allah Ditta appellant when the said deceased had caused insult to the said Allah Ditta appellant and that it was on account of this grievance, that the three appellants had attacked and killed the three deceased persons.

14. During the course of investigation, all the three appellants had been arrested on the very next day of the present occurrence i.e. on 12-11-1988 while they allegedly lay admitted in the Rural Health Centre of Rodu Sultan and each one of them had thereafter allegedly led to the recoveries of the respective weapons of offences allegedly used by them in the present occurrence.

15. When confronted with the prosecution case, Allah Ditta appellant had admitted, through his statement under section 342 of the Cr.P.C., that his daughter Mst. Sharifan had been married to Arshad, a brother of Rafique deceased while a sister of Rafique deceased had been married to Yasin appellant. He had further admitted that some times prior to the occurrence, both these ladies returned to their respective parental homes. He had, however, added that he had asked Rafique deceased a number of times for a compromise but the said deceased was adamant on securing divorce for his sister and for divorcing the daughter of Allah Ditta appellant. The said appellant had further pleaded that he was not agreeable to this proposition which had infuriated Rafique appellant. Explaining the occurrence, Allah Ditta appellant had claimed that on -the day of occurrence, Yousaf appellant was passing through the Bazar when all the three deceased persons, while armed with Chhuris injured him; that on the alarm raised by Yousaf appellant, Allah Ditta and Yasin appellants came in to intervene but were also given Chhuri blows by the deceased persons; that in the meantime, Yousaf appellant managed to pick up .a Chhuri from a nearby shop and inflicted injuries on the bodies of the three deceased persons in order to save himself and Allah Ditta and Yasin appellants.

16. The other two appellants, namely, Yasin and Yousaf adopted and owned the plea of Allah Ditta. All of them elected not to make statements on oath. It may also be mentioned here that nothing was brought on record to prove the injuries allegedly received by Allah Ditta and Yousaf appellants though Dr. Mussarat and Dr. Zafar Chaudhry had been produced as D.W.1 and D.W.2, respectively, to establish an incised wound received by Yasin appellant on his right thigh.

17. The appellant's plea of Yousaf appellant's having done to three deceased persons to death in exercise of the right of his defence and the defence of his father and a brother, is not a reasonable explanation of the occurrence in question.

18. Other than the appellants' claim that all three of them had received injuries on their persons and the fact that the I.O. had arrested all the three appellants while they lay admitted in the Rural Health Centre on the day after the day of occurrence, nothing else is available on record to demonstrate that Allah Ditta and Yousaf appellants had received any injury on their persons. Dr. Mussarat and Dr. Zafar Chaudhry have deposed that Yasin appellant had an injury on his thigh but then there is nothing on record to declare that this solitary injury on the thigh of Yasin appellant had been received on 11-11-1988 and that also during the course of the present occurrence.

19. It is also not plausible that the three deceased persons who were young men in their twenties, would mount an assault on Yousaf appellant after arming themselves with Chhuris and would lay down their lives at the hands of lone Yousaf appellant without having caused even a scratch on the person of Yousaf appellant or Allah Ditta appellant or at least having caused only one injury on the person of Yasin appellant.

20. In the circumstances, in the absence of any proof any injury on the person of Yousaf appellant or even on Allah Ditta appellant and in the absence of any specific proof that the solitary injury on the thigh of Yasin appellant had been caused during the occurrence in question, it is not possible for us to give any credit to the defence plea which is accordingly rejected.

21. The prosecution case is supported by the ocular testimony offered by Ghulam Hussain complainant and Haji Nazir P.W. It is true that Ghulam Hussain complainant is a real brother of Ghulam Shabir and Abdul Rehman deceased persons and also a brother-in-law of Rafique deceased, but that by itself is not sufficient to discard his testimony especially when it is on record that he did not have the kind of enmity with the appellants which could have motivated him to falsely implicate them in the present occurrence and moreso when we know that Ghulam Hussain complainant is rather closely related to the appellants' party. Haji Nazir P.W. is not connected with either side and has thus no motive to falsely burden the appellants with the murders of their three close relatives. The testimony offered by these two eye-witnesses inspires, confidence.

22. Consequently, we find that no exception can be taken to the conviction of Yousaf appellant as recorded by the learned trial Court on all the three counts.

23. The confirmation of the sentences of death awarded to him on the said counts has, however, engaged our attention.

24. It is the prosecution's own case that Yousaf appellant had not caused any injury to either Ghulam Shabir deceased or to Rafique deceased and he is thus only vicariously liable for these two murders. Consequently, the sentences of death awarded to him for the murders of Rafique and Ghulam Shabir deceased persons are not confirmed. He is instead punished with IF imprisonment for life on each of these two counts.

25. Yousaf appellant inflicted a solitary blow on the person of Abdul Rehman deceased which, however, proved fatal. In view of the fact that he caused only one injury on the person of Abdul Rehman deceased which was G the only injury received by the said deceased and also in view of the fact that he had, even according to the prosecution, acted under the influence and the command of his father Allah Ditta and further in view of the fact that the occurrence was the result of a domestic dispute involving females of the two sides, we find that imposition of death penalty on Yousaf appellant even for the murder of Abdul Rehman deceased, is unwarranted. Consequently, the sentence of death awarded to him even for the murder of Abdul Rehman deceased is Not confirmed and he shall instead suffer imprisonment for life even on this count.

26. These three sentences of imprisonment for life which have to be suffered by Yousaf appellant are ordered to run concurrently. He shall be given the benefit of the provisions of section 382-B of the Cr.P.C. and it is further directed that the amount of fine imposed on Yousaf appellant on all the three counts, if realised, shall also be paid to the respective heirs of the three deceased persons in addition to the amount of compensation ordered to be paid by Yousaf appellant to the heirs of the three deceased persons.

27. Murder Reference No.341 of 1991 and Criminal Appeal No.534 of 1990 are disposed of in the above terms.

28. But before we part with this judgment, we would like to mention that after having heard this case on 23-5-1993, we had verbally announced the decision whereby we had acquitted Allah Ditta and Yasin appellants on all the charges in view of Afw granted to them and had also acquitted Yousaf appellant of the murder of Rafique and Ghulam Shabir deceased persons and had punished Yousaf appellant with imprisonment for life for the murder of Abdul Rehman deceased only while refusing to confirm his sentence of death on the said charge. This was on account of a mistaken impression created by the learned counsel for the appellants that even Yousaf appellant had been granted Afw by the heirs of Rafique and Ghulam Shabir deceased persons. Since this mistake which had crept into the proceedings, had been detected before the judgment had been written or signed, we ordered rehearing of the present case and it is in these circumstances, that we heard this case again on 24-5-1993 and have delivered the present judgment. Death sentences are not confirmed. N.H.Q./A-562/L Order accordingly.